Justice of the Peace Jack Bell’s Decision

Justice of the Peace Jack Bell begun by explaining some of the background of the case indicating the following:

City of Kingston operated the municipal dump site from the early 1950s to the early 1970s;

In June 1991, the Ministry of Environment (MOE) published an inventory of waste sites in the province giving the Belle Island site the highest rank (A-1) in terms of causing an impact on the environment and potential harm to human health;

The MOE commissioned and funded a study to address pollution concerns at this site. In 1994, the report by CH2M Hill was published which indicated that there was a high probability of ground water and surface water contamination problems;

In the mid 1990s, citizens directed informal and formal complaints to the City and the MOE;

The MOE’s District Abatement office attempted at that time to persuade the City to initiate a plan to deal with the leachate impacting on the surface water of the Cataraqui River;

Environmentally minded citizens led by Janet Fletcher and assisted by Sierra Legal Defence Fund (SLDF) sampled several seeps in December 1996;

Analysis of the samples led to charges in March 1997;

The MOE’s Investigation and Enforcement Branch (IEB) spurred on by the SLDF’s revelations led an investigation that culminated in charges in October 1997.

His Worship then read the charges. He went on to describe the trial and stated that “the Court frequently had to readjust its focus from the particular arguments to the overview, that is, the forest was frequently disguised because of the trees.”

THE ACTUS REA OF THE CHARGES

Justice Bell broke the charges into 8 elements that the Prosecution must prove as follows:

a) The defendants; the City of Kingston, and for the MOE charges, Mirka Januszkiewicz; b) within the territorial jusrisdiction of the Court; c) deposited or permitted the deposit; d) of a deleterious substance, namely toxic leachate; e) in a place, the banks of the Great Cataraqui River; f) under conditions that resulted in the deposit of a deleterious substance in water; g) frequented by fish; h) namely the Great Cataraqui River.

Element (a) There was no real dispute of this element; the defendants. “They created the landfill site. They own the site. They are responsible for its ongoing operation and maintenance.”

Element (b), court jurisdiction, was not in dispute.

Element (c), the deposit or permitting the deposit. Justice of the Peace Jack Bell dealt with this matter with the due diligence defence because of the issue of foreseeability with respect to the passivity of permitting the deposit brought by defence counsellors Doody and Poch.

Element (d), the deleterious substance being deposited This element was “hotly contested by the defendants” based on three reasons:

1) the Defence argued that the “deleterious substance must make the water into which it is introduced deleterious to fish” and that the Prosecution have to prove this.

2) the Defence made allegations that insufficient care in labelling the sample brought doubts to the chain of evidence(presented by the Prosecution and the Crown).

3) the Defence attempted to discredit the testing methods by bringing in a theory of a pH shift which would have resulted from the standard procedures of bringing the effluent samples to fifteen degrees centigrades before performing the bioassay. The Defence claimed that the pH shift would make the samples toxic by increasing the proportion of unionized ammonia which the Defence expert testified to being the toxic element.

With regards to reason 1, Justice Bell referred to case law and particularly the Regina v. MacMillan Bloedel(1979) and its defining phrase “if a teaspoon of oil is deposited in the Pacific Ocean, it is enough to convict.” After reviewing all the case law submitted by both sides, Justice Bell concluded that the Prosecution and the Crown needed only to prove that “the substance introduced […] be deleterious or harmful to fish.”

As with reason 2, the quality of the chain of evidence, Justice Bell stated that the Court “has no concerns about the quality of the chain of evidence” and “did not agree with the submission by the Defence.”

The pH shift, reason number 3, was dealt with at length. Justice Bell states that “the many pages of reports and calculations and the hours of testimony and cross-examination, the charts and graphs of the expert witnesses […] were orchestrated in an attempt to convince the Court that if the bioassays were done in situ, that is, at the site, and in conditions that existed at the site, namely the lower temperatures in the range of two to six degrees centigrade, that no fish would have died or that if a breed of fish more indigenous to the Cataraqui River were used, that no fish would have died.”

After review of the “reasoned” counter-arguments of the Prosecution and the Crown, the Court declined “to make a ruling which impinges on the well researched, referenced and reasoned methodology of such documents as “the Protocol” (for bioassay testing), which has such widespread scientific support.” Further, Justice Bell stated that he did “not agree with the Defence’s argument on support of the pH shift as causing the deaths in the bioassay.” The Court’s decision also states: “the argument of the Defence is entirely theoretical and scientific experts who wish to overturn accepted science, in this Court’s opinion, have to do more than testify in Court. It should also be noted that the Defence did not put forward an in-situ sample for analysis[…].”

Justice Bell than proceeded to review each bioassay and its results. He reported that in all four counts brought by the Prosecution, the fish exposed to the leachate died within 24 hours. For the counts brought by the Crown, Justice Bell dismissed the first one on the basis that the Court was was “somewhat confused” because although chemical analysis was done that showed high ammonia, the report was dated ten months after sampling and he could not find evidence to support further testing and the “benefit will go to the Defence.”

In summary of this element, Justice Bell ruled that “seven of the eight counts in the charges against the defendants are ruled to be deleterious to fish. The arguments by the Defence on these seven charges concerned specifically with this element of the offence are not given credence[…].”

Element (f);Under conditions resulting in the deposit of a deleterious substance in water. Justice Bell made reference to the Sierra Legal Defence Fund video, testimony of samplers, and photographs. Witnesses characterized the leachate as “coming from the ground in the form of seeps or springs running across the ground and into the shore of the river.” Justice Bell stated that “from the massive evidence before the Court, it seems impossible to dispute this element of the offence.”

Element (g); Waters frequented by fish Justice Bell stated that the evidence presented for “abundant fish life in the vicinity of the Belle Island Landfill site” included the existence of a nearby commercial fishery, carp spawning observed by Mr. Rickey(IEB investigator), fish studies done by Dr. Hodson(Director of Environmental Science, Queen’s University, expert for the Defence), and Mr. Hayton (MOE, expert for the Crown).

Element (h); The Great Cataraqui River “An issue not in dispute.”

THE REASONABLE DOUBT ISSUE AND FORESEEABILITY

The issue of competing expert evidence

Justice Bell quoted some case law, particularly Regina v. Challice(1979) where there is a dispute as to the issues of fact between the prosecution and defence witnesses and in which it states “it is not necessary for them (the jury) to believe the defence issue on a vital issue, but that it is sufficient if it, viewed in the context of all the evidence, leaves them in a state of reasonable doubt as to the accused’s guilt.” Justice Bell then stated that “the efforts of the Defence in this approach can only be described as massive and almost overwhelming for a Trier of Fact to reach rational conclusions.” But after reviewing the material, Justice Bell “came to the conclusions supporting the Crown and Prosecution’s arguments.” Justice Bell cited a few of the problems encountered, the chain of evidence, the pH shift, errors of methodology and said he was satisfied with the explanations provided by the Crown’s and Prosecution’s witnesses. He indicates that “phrases were taken out of context” by the Defence and that the Defence gave “a special twist” to their arguments. Since the list of accusations made by the Defence was “exhaustive,” Justice Bell asked himself the following questions:

Did he believe that the MOE and Beak Laboratories used the same methodology on these samples as they on thousand of others according to their testimony? Yes.

Did he believe that the Crown and Prosecution witnesses engaged in some conspiracy against the City and conducted these tests using some extraordinary method to “cook” the results in these particular samples? No.

Justice Bell said that he could find “no evidence of a lack of objectivity.”

“The Court has no reasonable doubts as to the commission of the actus reas in seven of the eight charges.”

THE DUE DILIGENCE DEFENCE

Two aspects of this defence were addressed by Counsellor Poch, first, the mistake of fact defence linked to the foreseeability aspect of permitting the discharge and second, all reasonable precautions to prevent the discharge.

Counsellor Doody and counsellor Poch both made an argument during closing arguments that the due diligence defence be restricted to the charge period only (from December 5, 1996 to May 6, 1997). However, Justice Bell felt that their argument was not “straightforward.” He reiterated his position that “the defence of due diligence involves the characterization of efforts to prevent the act or event. This must necessarily involve the history of the City’s efforts for a reasonable time period prior to the charge period.” He also believes that the Sault Ste.Mariedecision is still the current law in support of his position.

Justice Bell proceeded to review the chronology of events from the Defence and Crown arguments to assist in establish whether there had been any due diligence.

1991MOE inventory of landfill sites rating the Belle Island siteEarly 1992John Bishop, local MOE environment officer made remarks to the City sollicitor about Belle Island site leaking into nearby waters December 1992A memo was sent by B. Meunier, CAO for the City to K.G. Linseman, Commissioner of works saying to “check it out”. This memo passed along to Mirka Januszkiewicz for action. May 1993Mirka Januszkiewicz visits the site, takes puddle samples, and sends them for analysis of B-Tex compounds (benzene, toluene, etc.), typical products of the decomposition of landfill wastes. September 27, 1993Jim English, environmental technician with the City, writes to Mirka Januszkiewicz about the upcoming CH2M Hill Report, suggests adding information with regards to metals (arsenic, mercury, selenium) and ends with the warning “I suspect this is an interesting can of worms.” November 1, 1994Alice Verbaas, MOE abatement officer, contacts Mirka Januszkiewicz, provides the CH2M Hill Report and gives the City 60 days to come up with a proposal to implement the Hill’s report’s recommendations; monitoring of surface and ground water flows from the site. 1994CH2M Hill Report commissioned by the Ministry is published. Sept. 16, 1993 to Sept.16, 1994The Cataraqui River Conservation Authority permitted the dumping of street sweepings on the Belle Park site during that period under certain conditions: a trench and berm to trap sediments from the fill site. May 17, 1996Report by Andrew Landy who had been retained to sample at the site and write a report. August 1996A letter from Ms. Januzkiewicz and Mr. Sedgsworth regarding the City’s long term plan for Belle Island. September 10, 1996City’s long term plan for Belle Island submitted to and passed by council.

Justice Bell proceeds to review the evidence before him. His Worship said that , in her evidence, Mirka Januszkiewicz proffers the trench and berm as part of measures to control leachate run-off. However, evidence in cross-examination shows them to be up slope from the seeps and from the water.

Mirka Januszkiewicz claims ignorance of the possible leachate problem at the landfill site. Mrs. Januszkiewicz and Alice Verbaas had numerous contacts during the period 1993 to January 1997. and Alice Verbaas states that the landfill site problem was mentioned at these meetings. Mrs. Januszkiewicz’s evidence is very vague on these points.

In November 1994, Alice Verbaas writes to Parks Canada in an attempt to obtain federal funding for the City to do monitoring and remediation planning. She indicates the MOE’s concern about the leachate problem and notes that complaints about staining have been received. A copy of this letter was sent to Mirka Januszkiewicz.

Alice Verbaas states that anyone familiar with landfill site management should know that either the site had to be engineered to make a cap of impermeable material, clay, over the landfill to prevent the rainwater percolation through the material which produces leachate or to find some method of containing the leachate and dealing with it.

Ms. Januszkiewicz was hired as an environmental engineer in December of 1991. She holds accreditation in the Ontario Society of Professional Engineers and attests to background in various aspects of environmental sciences and has taken extra courses in environmental law and management and operation of both landfill sites and sewage treatment plants.

In her cross-exmination, Ms. Januszkiewicz admitted that she did not read Mr. Landy’s report. She was too busy at the time but she approved Mr. Landy’s invoices for payment. Mr. Rose of Malroz testified that there were exceedances for the phenols and high levels of ammonia in Mr. Landy’s samples.

Justice Bell says: “Now, the Court acknowledges that Mirka Januskiewicz may have been let down by her staff in this case. However, it asks itself, who is the professional here? Who supposedly has the knowledge? As more evidence comes forth about site visits in good weather where she sees no leachate staining, and the paltry records of expenses, a few hundred dollars for environmental concerns at the site from 1992 to 1996 inclusive, the Court has to assume that Mirka Januszkiewicz was either incredibly naive about this discipline or that she was hopeful in suppressing any concerns until the City was prepared to deal with it.”

The City’s long term management plan for Belle Island deals predominantly with the after uses of the park and golf course; it talks about kite flying and hiking trails, and only incidentally at the end, deals with the issue of leachate. The Court says: “How does the Court interpret such a document taken in the context of this trial? Were the co-signers of this document so out of touch or so ignorant of the realities that they assumed the generalized platitudes of this so-called long-term management plan would be acceptable to the environmental concerns or was each senior City bureaucrat concerned only with his own turf and the Works Department concerned with the street sweepings and the Recreation Department with the golf course and kite flying which had the most clout? That Mrs. Januszkiewicz and the environmental portfolio were, at best, afterthoughts.” Justice Bell continues: “this long term management plan submitted eighteen months after it was asked for is a sort of flag of arrogance in the Court’s mind. Secondly, it virtuall ignores the concerns of the abatement officer of the Ministry of Environment expressed in several contacts with the City through Mirka Januszkiewicz. Thirdly, it seems to challenge the Ministry of Environment that these are established activities on the site. Do not interrupt them.”

“One interpretation of these events makes the so-called management plan a power struggle in which the Environment Department lost out. Another interpretation: ignore the problem, continue stonewalling, it is an expense to avoid. Or thirdly, was there no correct analysis of the potential problem despite all signs to the contrary?”

In his comments on the of actus rea and foreseeability, Justice Bell concluded that “Mirka Januszkiewicz and the City were aware of the leachate flow to the waters of the Great Cataraqui River and for reasons known only to the defendants chose to ignore it. The defence’s issue of foreseeability and ignorance of the problem is negated on the evidence.”

After repeated contacts with Neil Rickey, MOE enforcement officer, “eventually a message got through” and Malroz Engineering was hired in February 1997. “To the credit of both Mirka Januszkiewicz and the City, the whole process of site characterization and remediation was fast-tracked. An estimated 1.7 million dollars was spent in 1997 and 1998.” The damming of the effluent discharge and pumping of the leachate to a sanitary sewer was not completed until all but one of the charge dates (May 6, 1997) had occurred but the effluent was characterized by analysis of many samples. Eventually, permanent below-frost pipelines conveyed the effluent to the sanitary sewer system.

CONCLUSION

The Court rejected the defendants’ position that they were duly diligent in respect to preventing the discharges. The Court “can find no evidence of a comprehensive plan, not even one of effective monitoring of the closed landfill site to detect discharges. Certainly, no effective resources were committed to even dealing with the problems on a haphazard basis.” The Court registered conviction on the four charges brought by Janet Fletcher against the City and on three counts brought by the MOE (February 10 and 19, 1997, and May 6, 1997) against both the City and Mirka Januszkiewicz.

THE ABUSE OF PROCESS MOTION

This motion was brought by Councillor Poch at the end of the arguments. Mr. Poch based his argument on a situation where one government branch approved a project and another laid charges for work done on the project citing Markou and the Grand River Conservation Authority. Mr. Poch argued that the fill permit granted to the City by the Cataraqui River Conservation Authority to deposit street sweepings immunizes the City from any prosecution by another government agency, such as the MOE, because they are already controlling the run-off by conditions laid down by the Cataraqui River Conservation Authority. “Now, in the Court’s mind, this is labelled a faint-hope motion.” In the permit itself, it states “This permit does not relieve you from compliance with the provision of any other applicable federal, provincial, or municipal statutes, regulations or bylaws” effectively dissolving the motion. Further, the suggestion that the long-term management plan was perceived as acceptable to the MOE is “of course, an error.” The letter from John Bishop, MOE, to Brian Sheridan, the City’s Commissioner of Operations indicates that the plan lacks sufficient detail for the Ministry to support it; “while the need to optimize a recreational land use may be an important issue to the City of Kingston’s Parks and Recreation Committee, the Ministry of Environment’s concerns lie in the environmental protection implications of your proposal. Greater detail is needed specifically in the areas of abatement activities at the identified discharge points and the long-term monitoring and contingency plans.” The abuse of process motion is denied.